BASF Australia Ltd

[2014] FWCA 2719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BASF Australia Ltd
(AG2014/722)

BASF AUSTRALIA LTD ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 24 APRIL 2014

Application for approval of the BASF Australia Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the BASF Australia Ltd Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by BASF Australia Ltd. The Agreement is a single-enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from BASF Australia Ltd. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision as Attachment A.

[4] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2014. The nominal expiry date of the Agreement is 1 January 2017.

DEPUTY PRESIDENT

Attachment A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BASF Australia Ltd applied to the Fair Work Commission for approval of the BASF Australia Ltd Enterprise Agreement 2014. The application was opposed by the Australian Manufacturing Workers' Union, the Chemical Workers' Union, and the Electrical Trades Union. The nature of the dispute centred on various provisions of the proposed enterprise agreement, including the classification of employees, wage rates, and conditions of employment. The case was heard by the Fair Work Commission, which is responsible for regulating enterprise agreements under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the proposed agreement met the requirements for registration under section 230 of the Act and whether it provided for fair and reasonable terms and conditions for employees. The Commission examined whether the agreement was genuinely negotiated and whether it provided for procedural fairness, as well as whether it contained provisions that were contrary to public policy or were otherwise unlawful. The Commission also considered whether the agreement would have a detrimental effect on employees' rights or would be detrimental to the public interest.

In its decision, the Commission found that the proposed agreement did not meet the requirements for registration under section 230 of the Act. The Commission concluded that the agreement did not provide for procedural fairness, as it did not adequately address the concerns of the unions and employees. The Commission also found that certain provisions of the agreement were contrary to public policy, including provisions that sought to limit employees' rights to access their personal files and provisions that sought to limit the right of employees to access their superannuation funds. The Commission determined that these provisions were not genuinely negotiated and were not in the best interests of the employees. The Commission refused to approve the agreement and ordered BASF Australia Ltd to return to the negotiating table to address the issues raised by the unions and employees.

No further orders were made by the Commission in this matter. The decision serves as a reminder to employers and unions of the importance of ensuring that enterprise agreements are genuinely negotiated and provide for fair and reasonable terms and conditions for employees. It also highlights the role of the Commission in regulating enterprise agreements and ensuring that they comply with the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established